NLRB issues report to guide labor-management community on social media issues

Sept. 1, 2011 – To guide the labor-management community, law practitioners, and human resource professionals, the National Labor Relations Board’s (NLRB) acting general counsel recently issued a report on emerging issues related to social media and employer policies.

The report discusses 14 cases involving social media. According to a recent press release, each case was submitted by regional offices to the NLRB’s Division of Advice in Washington, DC.

Four cases involve employees’ use of Facebook that was “protected concerted activity,” and another five involve Facebook and Twitter posts that were considered unlawful. In five cases, the employers’ social media policy was considered unlawful as overly broad.

Another case discusses the lawfulness of an employer’s rule against employee contact with media outlets, and another concludes that a union violated the law when posting video to YouTube broadcasting interrogations with suspected immigrants.

The following provides a brief synopsis of several cases:

Postings by employees, protected activity

In one case, the NLRB concluded that an employer unlawfully discharged five employees who responded via Facebook to allegations of poor job performance by another co-worker.

The co-worker believed the posts, which included swearing and sarcasm, to be a form of harassment or “cyber bullying.” But the NLRB reasoned that the discharged employees were engaging in “protected concerted activity.”

In another case, the NLRB ruled that an employee engaged in “protected concerted activity” by posting negative remarks about her supervisor on Facebook from home, which drew supportive responses from co-workers. The Facebook post violated the employer’s internet policies, which prohibited employees from making negative remarks about the employer or its supervisors.

The NLRB also concluded that the portion of the policy prohibiting employees from making disparaging comments when discussing the company or supervisors was unlawful, because the policy didn’t contain language to inform employees the rule did not apply to section 7 activities.

In another case, an employer discharged a luxury car salesperson for posting on Facebook photographs and commentary criticizing an employer-sponsored sales event. The employee’s post disparaged the employer for providing inexpensive food and beverages to clients.

The NLRB ruled the employee’s posts were “protected concerted activity” because they reflected the continued sentiments of co-workers, who raised concerns previously that serving lower quality food might negatively impact their commissions.

Postings by employees, not protected activity

In one case, a reporter was not engaged in “protected concerted activity” when he posted offensive tweets on his work-related Twitter account. One post was critical of the newspaper’s copy editors, but there was no evidence of a shared concern among other co-workers.

In another case, a bartender who posted a Facebook comment about the employer’s tipping policy was not engaged in protected concerted activity. The unwritten tipping policy prohibited waitresses from sharing tips with bartenders.

In another case, an employee was not engaged in “protected concerted activity” when she posted messages about her employer on the Facebook “wall” of a U.S. Senator from that state. The employer fired her for posting disparaging remarks and confidential information. The NLRB concluded that the employee’s post was not the result of a shared concern among co-workers.